RAMESHKUMAR TAGRAJJI JAIN,MUMBAI vs. ITO, WARD - 19(3)(1), MUMBAI

PDF · subscribers
ITA 2949/MUM/2019Status: DisposedITAT Mumbai25 March 2021AY 2009-104 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal held that while the assessee failed to prove the genuineness of purchases, the estimated profit of 12.5% was on the higher side. The addition was restricted to 6.5% of the bogus purchases.

What were the facts?

The assessee, a trader in metals, was found to have obtained bogus purchase bills. The Assessing Officer made an addition by estimating a profit of 12.5% on these purchases, which was confirmed by the CIT(A).

What were the issues?

Whether the estimation of profit on bogus purchases by the revenue authorities was justified, and if not, what would be a fair estimation.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI

Before: VIKAS AWASTHY

For Appellant: Shri Prakash Shah
For Respondent: Shri Sushil Kumar Mishra
Hearing: 30/12/2020Pronounced: 25/03/2021

सुनवाई क� �त�थ/ Date of hearing : 30/12/2020 घोषणा क� �त�थ/ Date of pronouncement : 25/03/2021 आदेश/ ORDER PER VIKAS AWASTHY, J.M: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-7, Mumbai [in short ‘the CIT(A)’] dated 27/09/2018 for the assessment year 2009-10.

2.

This appeal is time barred by 119 days. The assessee has filed an affidavit giving reasons for delay in filing of the appeal. After examining the contents of affidavit, I am satisfied that the delay in filing of appeal is not wilful or deliberate, but has resulted for the bona fide reasons cited in affidavit. The Hon’ble Supreme Court of India in the case of Ram Nath Sahu Ors. vs. Goberdhan Sao & Ors. reported as 2002(3) SCC 195 has held that acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party. Thus, in the light of facts and the law laid down by Hon’ble Apex Court delay of 119 days in filing of the appeal is condoned and the appeal is admitted for disposal on merits.

3.

Shri Prakash Shah appearing on behalf of the assessee submitted that the assessee is engaged in trading of ferrous and no-ferrous metals. The assessment in the case of assessee for assessment year 2009-10 was reopened on the basis of information received by the DGIT (Inv.) Mumbai from the Sales Tax Department, Government of Maharashtra. As per the information received, the assessee had obtained bogus purchase bills to the tune of Rs.84,23,315/- from various (seventeen) hawala dealers. In order to prove genuineness of purchases during assessment proceedings, the assessee furnished copies of bills, quantitative details of the stock and sales, bank statements evidencing payments made to the dealers ledger of alleged hawala dealers, etc. The Assessing Officer after examining evidences furnished by the assessee made addition on account of bogus purchases by estimating GP at 12.5% of the alleged hawala purchases.

Aggrieved by said addition, the assessee filed appeal before the CIT(A) against the Assessment Order dated 18/3/2015 passed under section 143(3) r.w.s. 147 of the Income Tax Act,1961 (in short ‘the Act’). The CIT(A) without appreciating facts of the case and documents on record confirmed the addition made by the Assessing Officer. The ld. Authorised Representative submitted that the CIT(A) has failed to consider GP of 2.93% declared by the assessee. Estimation of GP by the Assessing Officer and the CIT(A) is very much on the higher side. 2

4.

Per contra, Shri Sushil Kumar Mishra, representing the Department vehemently defended the impugned order and prayed for dismissing appeal by the assessee. The ld. Departmental Representative submitted that the assessee failed to discharge his owns in proving genuineness of purchases and the dealers. The Assessing officer after considering the facts of case and the judgement of Hon’ble Gujarat High Court in the case of CIT vs. Simit P Sheth 356 ITR 451 restricted the addition to 12.5%. The estimation of GP by the Assessing officer and the CIT(A) at12.5% is fair and reasonable.

5.

Both sides heard, orders of authorities below examined. The assessee is a trader in ferrous and non-ferrous metals. Undisputedly, the assessee has failed to substantiate genuineness of the purchases, as well as the dealers. At the same time turnover declared by assessee has been accepted by the Assessing Officer. Where the sales have been accepted, it is the profit element embedded in bogus purchases that has to be taxed. I am of considered view, that estimation of GP at 12.5% by the Assessing Officer and the CIT(A) is on higher side. Generally, the GP in trading of ferrous and non-ferrous metals range between 5% to 8%. The assessee has declared GP of 2.93%. Taking into consideration entire facts of the case, addition on account of bogus purchases is restricted to 6.5% of such purchase. The impugned order is modified and the appeal of assessee is partly allowed.

6.

In the result, appeal by the assessee is partly allowed in the terms aforesaid.

Similar judgments

Other orders that rely on the same authority or decide the same section.

More judgments on Section 147

All 49,210 judgments and leading authorities on Section 147 →

Latest GST High Court judgments

Search GST case law →